我国行政不作为诉讼制度的缺陷与完善

发布时间：2018-07-28 06:35

【摘要】：当前,随着我国法制建设的逐步完善以及人民群众用法律维权意识的日益提高,针对行政机关不作为行为提起的诉讼案件逐年增加。《行政诉讼法》虽然规定了行政不作为的可诉性,但却没有对行政不作为诉讼的概念作出清晰明确的规定,从现有的法律规范中似乎也不能获得比较权威的解释。2014年底全国人大常委会修改的《行政诉讼法》在行政不作为相关规定上有了很大的进步,最高人民法院在2015年公布的十大行政不作为案件也为日后的行政不作为案件的审理给予了十分有益的指导。但与此同时,也不可否认,我国的行政不作为诉讼救济制度缺乏具体、统一的可操作标准,这与我国政府为人民服务的宗旨不符,行政不作为现象不仅大大破坏了政府的形象,也有损政府在人民心中的权威,对我国的法制建设以至经济发展,社会稳定都有不利的影响。然而,目前我国学术界对行政不作为的相关理论研究却很少。司法实践中,由于不同法院或者不同法官的理解和认识上的差异,即使相同性质的行政不作为诉讼案件得到的救济程度和结果也会不一样,甚至有不少行政不作为的案件被拒在法院大门之外。总之,对行政不作为诉讼救济制度存在的缺陷进行深入研究,不仅对完善行政不行为的理论体系具有重要的理论意义,也对人民法院正确行使司法审查权具有重要的现实意义。此外,通过完善行政不作为诉讼制度,也能进一步监督政府工作,提高政府行政效率,更好地完成政府为民服务的使命。本文着力研究我国行政不作为的诉讼制度,行政不作为是指行政主体及其工作人员有积极实施行政行为的职责和义务,应当履行而未履行其法定职责或拖延履行其法定职责的状态。行政不作为诉讼,是行政相对人因行政主体的行政不作为行为向人民法院提起诉讼寻求救济的一种诉讼制度。本篇文章通过梳理比较典型的几种行政不作为诉讼类型的概念,即:依申请不作为诉讼和依职权不作为诉讼,具体行政不作为诉讼和抽象行政不作为诉讼来帮助分析我国行政不作为诉讼制度存在的不足之处。行政不作为诉讼制度存在缺陷有其本身的内在原因,亦有外在因素,本文试图通过从立法、司法、国家赔偿,公民自身等几个角度具体分析各种原因,并结合现实生活发生的实际案例来探究完善行政不作为诉讼制度的具体措施,增强文章的说服力。本文还按照对基本概念进行厘清,提出问题,解决问题这一整体思路最终达到加强对行政主体的监督,增强其服务意识的目的,与此同时敦促行政主体坚持依法行政,重视提高行政效率,从而保护相对人的合法权益,以期能够最大限度地发挥出行政诉讼制度的价值。
[Abstract]:At present, with the gradual improvement of the legal system in our country and the increasing awareness of the people's using the law to protect their rights, The number of litigation cases brought against the omission of administrative organs has increased year by year. Although the Administrative procedure Law stipulates the actionable nature of administrative omission, it does not make clear and clear provisions on the concept of administrative omission litigation. The Administrative procedure Law, amended by the standing Committee of the National people's Congress at the end of 2014, has made great progress in the relevant provisions on administrative omission. The ten cases of administrative omission published by the Supreme people's Court in 2015 also provide very useful guidance for the trial of administrative omission cases in the future. But at the same time, it is also undeniable that the relief system of administrative omission litigation in our country lacks concrete and unified operational standards, which is inconsistent with the purpose of our government to serve the people. The phenomenon of administrative omission not only destroys the image of the government, but also greatly damages the image of the government. It also impairs the authority of the government in the people's hearts, and has a negative impact on the legal construction, economic development and social stability of our country. However, there are few theoretical studies on administrative omission in Chinese academic circles at present. In judicial practice, due to the differences in understanding and understanding between different courts or judges, the degree of relief and the results obtained in cases of administrative omission of the same nature will be different. There are even a number of cases of administrative inaction that are excluded from the courts. In a word, it is not only of great theoretical significance to perfect the theoretical system of administrative omission, but also to the people's court to exercise the right of judicial review correctly. In addition, by perfecting the litigation system of administrative omission, we can further supervise the work of the government, improve the administrative efficiency of the government, and better fulfill the mission of the government to serve the people. This paper focuses on the litigation system of administrative omission in our country. Administrative omission refers to the responsibility and obligation of the administrative subject and its staff to carry out the administrative act actively. The state of performing or delaying the performance of its statutory duties. Administrative omission litigation is a kind of litigation system in which the administrative counterpart brings a lawsuit to the people's court for the administrative omission of the administrative subject. This article combs several typical concepts of administrative omission litigation, that is, action of omission on application and action of omission according to function. Specific administrative omission litigation and abstract administrative omission litigation to help analyze the shortcomings of our administrative omission litigation system. There are internal reasons and external factors for the defects of the administrative omission litigation system. This paper tries to analyze the reasons from the aspects of legislation, judicature, state compensation, citizens themselves and so on. Combined with the actual cases of real life to explore the specific measures to improve the administrative omission litigation system to enhance the persuasion of the article. This article also according to the basic concept to clarify, raises the question, solves the problem this overall mentality finally achieves the goal of strengthening the supervision to the administrative subject, strengthens its service consciousness, at the same time urges the administrative main body to persist in the administration according to the law, Attention should be paid to the improvement of administrative efficiency so as to protect the legitimate rights and interests of relative persons in order to give full play to the value of administrative litigation system.
【学位授予单位】：南京师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.3

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